Making Insurance Securitizations More Efficient — Conditions for Establishing and Maintaining Spfc
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This section and § 56-13-409 provide a basis for the creation and use of protected cells by an SPFC as a means of accessing alternative sources of capital, lowering formation and administrative expenses, and generally making insurance securitizations more efficient. If a conflict exists between this chapter and either this section or § 56-13-409, either this section or § 56-13-409 shall control, as applicable.
An SPFC may establish and maintain one (1) or more protected cells with prior written approval of the commissioner and subject to compliance with the applicable provisions of this part and the following conditions:
A protected cell shall be established only for the purpose of insuring or reinsuring risks of one (1) or more SPFC contracts with a counterparty with the intent of facilitating an insurance securitization;
Each protected cell shall be accounted for separately on the books and records of the SPFC to reflect the financial condition and results of operations of the protected cell, net income or loss, dividends, or other distributions to the counterparty for the SPFC contract with each cell, and other factors as may be provided in the SPFC contract, insurance securitization transaction documents, plan of operation, or business plan, or as required by the commissioner;
Amounts attributed to a protected cell under this part, including assets transferred to a protected cell account, are owned by the SPFC, and no SPFC shall be, or hold itself out to be, a trustee with respect to those protected cell assets of that protected cell account;
All attributions of assets and liabilities between a protected cell and the general account shall be in accordance with the plan of operation approved by the commissioner. No other attribution of assets or liabilities shall be made by an SPFC between the SPFC's general account and its protected cell or cells. The SPFC shall attribute all insurance obligations, assets, and liabilities relating to an SPFC contract and the related insurance securitization transaction, including any securities issued by the SPFC as part of the insurance securitization, to a particular protected cell. The rights, benefits, obligations, and liabilities of any securities attributable to that protected cell and the performance under an SPFC contract and the related securitization transaction and any tax benefits, losses, refunds, or credits allocated, or any of them, at any point in time pursuant to a tax allocation agreement between the SPFC and the SPFC's counterparty, parent, or company or group company, or any of them, in common control with them, as the case may be, including any payments made by or due to be made to the SPFC pursuant to the terms of the agreement, shall reflect the insurance obligations, assets, and liabilities relating to the SPFC contract and the insurance securitization transaction that are attributed to a particular protected cell;
No assets of a protected cell shall be chargeable with liabilities arising out of an SPFC contract related to or associated with another protected cell. However, one (1) or more SPFC contracts may be attributed to a protected cell only if the SPFC contracts are intended to be, and ultimately are, part of a single securitization transaction;
No sale, exchange, or other transfer of assets shall be made by the SPFC between, or among, any of the SPFC's protected cells without the consent of the commissioner, counterparty, and each protected cell;
Except as otherwise contemplated in the SPFC contract or related insurance securitization transaction documents, or both no sale, exchange, transfer of assets, dividend, or distribution shall be made from a protected cell to a counterparty or parent without the commissioner's approval and the sale, exchange, transfer, dividend, or distribution shall not be approved if the sale, exchange, transfer, dividend, or distribution would result in a protected cell's insolvency or impairment; and
An SPFC may pay interest or repay principal, or both, and make distributions or repayments with respect to any securities attributed to a particular protected cell from assets or cash flows relating to, or emerging from, the SPFC contract and the insurance securitization transactions that are attributable to that particular protected cell in accordance with this part or as otherwise approved by the commissioner.
No SPFC contract with, or attributable to, a protected cell shall take effect without the commissioner's prior written approval, and the addition of each new protected cell constitutes a change in the business plan requiring the commissioner's prior written approval. The commissioner may retain legal, financial, and examination services from outside the department to examine and investigate the application for a protected cell, the reasonable cost of which may be charged against the applicant, or the commissioner may use internal resources to examine and investigate the application, the reasonable cost of which may be charged against the applicant, or both.
An SPFC utilizing protected cells shall possess and maintain minimum capitalization separate and apart from the capitalization of its protected cell or cells in an amount determined by the commissioner after giving due consideration of the SPFC's business plan, feasibility study, and pro-formas, including the nature of the risks to be insured or reinsured. For purposes of determining the capitalization of each protected cell, an SPFC shall initially capitalize and maintain capitalization in each protected cell in the amount and manner required for an SPFC in § 56-13-406.
The establishment of one (1) or more protected cells alone shall not constitute, and shall not be deemed to be, a fraudulent conveyance, an intent by the SPFC to defraud creditors, or the carrying out of business by the SPFC for any other fraudulent purpose.